Blog About Law and Technology

Charles Carreon Invokes First Amendment Right to Threaten First Amendment Rights

Charles Carreon, still fighting lawyers Paul Alan Levy and Catherine Gellis over the Satirical Chas lawsuit, has filed his opposition to a motion to impose tens of thousands of dollars in attorneys’ fees. In his opposition (PDF), Carreon has the chutzpah to argue that the real speech threatened here is his.

Carreon, if you’ll recall, didn’t like the satirical website hosted at Charles-Carreon.com. Asserting that the site infringed on the trademark in his name, Carreon convinced Register.com to blow the anonymous satirist’s cover, and sent a menacing email to Satirical Chas’ lawyer threatening extensive and wide-ranging litigation at a time and place of Carreon’s choosing. Opting not to live under a constant shadow of vexatious litigation, Satirical Chas sought declaratory relief — a determination that his use of the website was protected by the First Amendment. Despite his initial, furious bluster, Carreon conceded as much and offered to settle the case. In proffering a judgment, Carreon didn’t mention attorneys’ fees, which Satirical Chas’ lawyers — Public Citizen’s Paul Alan Levy and local counsel Catherine Gellis — moved for.

To avoid having to pay attorneys’ fees, Carreon has to argue that the case isn’t “exceptional.” To do so, he essentially argues that the website and its author’s free speech rights are worthless. Satirical Chas is not a journalist, Carreon says, and he’s no web designer, so there’s not much worth protecting and the case isn’t exceptional.

Having argued that his critic’s speech isn’t valuable enough to make the case exceptional, Carreon turns and ominously warns that speech worthy of protection might be threatened if the case is exceptional: speech like his. Carreon argues that if cases like this are exceptional, and those making promises of litigation are held to those promises, that would threaten his free speech rights to send those threats. That is, threats to subject critics to vengeful litigation over speech that they later concede is protected by the First Amendment.

That’s the point. If you lord your knowledge of the legal system over those without the benefit of a legal education, you should be worried that you may wind up paying for their legal fees.

Carreon then goes on to argue that his speech is further protected by California’s litigation privilege. The litigation privilege is intended to provide lawyers with latitude in asserting the claims of their clients, and to allow litigants to speak freely before a court without worrying that they’ll be hit with lawsuits for tort claims. (This case is not a tort case.) Carreon argues that letters asserting legal claims are protected by the litigation privilege because they’re part of litigation. His argument would mean that lawyers sending threats on their own behalf would make them immune from any lawsuit — even those seeking declaratory relief — no matter how meritless the underlying threats are.

I interpret Carreon’s arguments to be that (1) the site is protected by the First Amendment, but the case is not exceptional because the speech isn’t all that valuable; (2) sending legal threats is protected speech which is worth protecting; and (3) even if it were not protected speech, threatening letters are part of litigation and therefore are protected by the litigation privilege. Taken to their logical conclusion, Carreon essentially asserts that he has a First Amendment right to threaten and bring vexatious litigation.

I suspect that argument won’t fly.

Finally, Carreon’s filing is notable for a few miscellaneous reasons.

First, it reveals that he subpoenaed Ken White of Popehat, seeking emails between Ken, Satirical Chas, and Satirical Chas’ lawyers, as Satirical Chas had sought Ken’s help in responding to Carreon’s legal threats. White told Carreon to buzz off, responding instead with thorough objections to protect attorney-client communications. Carreon, not mentioning the objections, complains in his opposition that Ken White “derides” attorneys as “censorious asshats” and just plum doesn’t like Carreon.

Second, Carreon says that the entire action might have been subject to California’s anti-SLAPP statute, if it applied to Federal claims. But that, hypothetically, would require arguing that Satirical Chas’ case wasn’t likely to succeed. Even Carreon acknowledges that the Satirical Chas site is protected speech, meaning Satirical Chas could easily have shown a likelihood of success.

Lastly, Carreon makes some worrying arguments about copyright, which was not part of the case or the proffered settlement. Carreon complains that Satirical Chas used a photo of Carreon without permission, thereby infringing upon his copyright. Carreon, showing mercy, explains that he opted not to pursue litigation on that front. This is worrying in that Carreon suggests that he still can still exercise the option of pursuing a copyright infringement claim. It’s also somewhat hypocritical — Carreon’s “Rapeutation” site still uses my photo (and, for that matter, Satirical Chas’ photo).

[…] That case is now embroiled in a dispute over the blogger's request for attorney fees. Mr. Carreon, resisting any award of fees, served me with a subpeoena for communications with the blogger and the blogger's attorneys of record. I objected. Mr. Carreon has now filed his opposition to the motion for fees; you can read about his arguments at Techdirt or Adam Steinbaugh's blog. […]

[…] Back to the whole sword thing, you just don’t tell trademark owners that they can’t make vexatious and baseless legal threats without any real punishment. Such attitudes are an affront to the entire American legal system. If people like this gripe site owner are let loose on the world, no trademark will be worth spit because they’ll just run around preemptively suing Disney and Taco Bell! “Whoa dude I hate Taco Bell, man now I have to sue them to protect my rights and stuff, cause like I said I hated them or something!” (Note my unwashed masses speak is a bit rusty) People will be able to go around and not fear the righteous anger of the trademark holders, people will speak freely about trademark holders, and this will deprive trademark holders and vexatious lawyers from exercising their own First Amendment …! […]